Did Glee Just Break the Law?

This morning, the indie singer-songwriter Jonathan Coulton noted on Twitter that Fox’s hit a cappella show Glee appeared to have cribbed his 2005 arrangement of Sir Mix-a-Lot’s “Baby Got Back” for use in next week’s episode. An unofficial leak of the Glee version bore a striking resemblance to his earlier recording, and Fox producers, Coulton said, “never even contacted me.” He has since expressed concern that Glee “may have even used parts of my own recording.” The Glee version even includes lyrical variations that Coulton himself introduced. (Coulton has created a karaoke version of the song, strengthening the possibility that Fox may have used not only Coulton’s chords, but his actual mix.)

Internet sleuths immediately went to work on the question, creating side-by-side comparisons of the audio (which are very convincing) and even unearthing an official Fox version of the as-yet-unreleased single in the Swedish iTunes store. While the track is not currently available in the American store, gaming blog Kotaku claims that it “was available earlier and was pulled by Fox.” Despite calls from Twitter and multiple media organizations, the network has yet to make a statement as of this afternoon, but, all things considered, it’s looking pretty bad for Glee.

So, if Coulton’s accusations turn out to be true, what legal recourse might he have? Fortunately, copyright law is pretty clear on the issue. An arrangement like Coulton’s is technically called a “derivative work,” because it is based on a pre-existing “original work” (Sir Mix-A-Lot’s original rap song). In order to create his arrangement and sell it, Coulton obtained a compulsory (or “statutory”) license from the copyright holder, the Harry Fox Agency. Coulton himself does not own the rights to Mix-A-Lot’s lyrics, of course, but, according to the U.S. Copyright Office, “the copyright of a derivative work covers ... the additions, changes, or other new material appearing for the first time in the work.”

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Even if Fox got permission for the Glee cover of “Baby Got Back” from Harry Fox (which they undoubtedly did), they are also required to seek permission from Coulton for use of his “additions”—chords, phrasings, rhythms, and so on—that make his arrangement unique (and choir-boy friendly). Of course, he’d have to prove in court that the two arrangements are, in fact identical, but, to our (admittedly non-expert) ears, there’s very little question. Fox owes Coulton at least an apology—and probably a check, as well.

Update, Jan. 22nd, 2013:

The dustup over Glee’s alleged use of Jonathan Coulton’s arrangement of “Baby Got Back” continues after the long weekend, with no response from Fox except the posting of the Glee cover in the U.S. iTunes store. Supporters of Coulton are waiting with pitchforks in hand for the episode thought to contain the cover, which broadcasts on Thursday night.

Meanwhile, Coulton says he has lawyers looking into his legal options, which is a good idea, as copyright can be complicated. On that note, a few commenters took issue with our characterization of the legal situation on Friday, rightly pointing out that a compulsory license does not carry with it the right to create and receive the copyright protections of a “derivative work”—the copyright holder must grant that permission separately. We did not intend to imply the connection. If Coulton did not request and receive permission to create a “derivative work” in addition to obtaining the compulsory license necessary to merely cover the song, the “added material” of his arrangement would not be protected under that provision, and Glee would probably be legally in the clear. That being said, the court of public opinion is not so exacting; if the continued internet uproar is any indication, Glee won’t be acquitted there.